This week's issue of the Dartmouth Free Press, a liberal student newspaper, has a thoughtful personal essay by a Dartmouth ROTC cadet discussing his experience on campus here. I think the essay provides some interesting context on the campus ROTC issue and the Solomon Amendment litigation, and in particular.

The article opens with a quote from Thucydides that I had not seen before and which I think succinctly captures a large element of my thinking on the whole Solomon Amendment/ROTC debate:

"The Nation that makes a great distinction between its scholars and its warriors will have its thinking done by cowards and its fighting done by fools." - Thucydides

Leaving aside the merits of the Solomon Amendment itself, one reason I am troubled by allowing law schools to exclude the military from recruiting on campus is that it further reinforces the divide between the military and elite society in the nation, and I believe that that divide is unfortunate and that we should be trying to narrow, not widen the gulf. I also believe that given the criticisms of the military as unduly class-based, we should be making it easier for highly-educated students to join the military, not more difficult. One needs only to look at the remarkable job that the JAG has been doing with the Abu Ghraib cases to see how beneficial it can be to have well-qualified students in the military. Finally, post-9/11 my personal experience is that many young people have felt a renewed call to serve their country and believe in the essential justice of the war on terror, and that we should not be raising the costs for these students to serve their country if they so desire. Thucydides, I think, says this all much better than I.

Of course, I understand all of the arguments on the other side and recognize their merits. But, again, I personally don't believe that the way to bring about the changes that are desired is by excluding military recruiters from campus, as opposed to trying to change the law. So I don't intend for this to be the place to fight the FAIR v. Rumsfeld case (although I'm sure that will be the likely consequence of this post anyway).

This seems to me a fair and thorough treatment of the subject. Where I depart is in the question why the law school, rather than the military, needs to change its policies. Every other legal recruiter in the country will face a competitive disadvantage (rightly, I think) if they discriminate against homosexuals because every elite law school only open their doors to equal-opportunity employers. I'm sure at some point in history other employers had to make the decision between abandoning its patterns of discrimination and losing access to the next generation of elite legal talent. (That choice needn't have been an easy one; I suspect "don't ask don't tell" isn't the only institutional tradition that has some good reasons behind but is deemed discriminatory by the nation's law schools.) Why shouldn't the military bear the same burden?

And I'm not sure to what extent concerns over the gulf between the military and the legal elite justify this differential treatment. Surely those concerns are valid. But why shouldn't we worry also about the gulf separating government offices that discriminate, nonprofits that discriminate, religious entities that discriminate, even corporate law firms that discriminate? It seems that such a concern is always present, to some degree or other. In the military context it may seem more salient. But it's hard to see how it should be of a different kind.

You have to love the Left's circular logic. They do everything they can to keep the 'elite' kids out of the military and then condemn the military for not having enough 'elite' people in its ranks. And when issues of war and peace are debated, no member of Congress (by definition, someone who is 'elite') may advocate in favor of military involvement unless their own children serve in the military - but that is prevented in part by the derision of the military in schools, if not its outright exclusion from them.

Of course, this is an exercise in 'forensic logical progression.' The Left's disdain for the military has no logical foundation at all. Make Love, Not War, Pass the Bong.

That is a good point about similar legal recruiting efforts having to be non-discriminatory. There is, I think, probably one distinction that needs to be made.

Most, if not all, major universities recieve federal dollars. I don't have a problem with any university or law school excluding military recruiters on the grounds that they discriminate, just don't expect federal dollars to come there way. Most of these same schools probably wouldn't take money from a firm that espouses the same policies as the military and then ban their recruiters from campus. Why should they do it with the government?

I must second Goober. I have a number of friends in the law school at my institution (let's just say it's in New Haven, CT), and nearly universally the only problem is the unequal employment issue. The school isn't trying to keep the military out to keep its "elites" safe from recruitment, but simply applying the same policy to the military as to any other recruiter.

In response to Texican: fine, cut federal funding for the law school. My biggest complaint is that because the law school enforces its policy against the military, the military turns to the NSF and tells them not to give money to my department (mathematics), where the graduate students using that grant to get by are just trying to keep their heads down and write a dissertation and most of the time haven't even heard of the goings-on in the law school. "Do what I want or I'll shoot your cousin" is a movie-bad-guy line, not one we should be hearing from the government.

Answer: The pro gay-rights Democratic members of the Congress could use some of the political capital associated with confirming O'Connor's Republican successor to pass laws more friendly to homosexuals in the military.

The issue is not why should elite law schools make an exception to their "non-discrimination" policies for the military but rather why should the federal government make an exception for federal funding to schools that don't allow military recruiters?

bobbie, you certainly aren't the only one who is amused by "left" and "right" generalizations. Moreover, the moment someone starts out an observation, argument or post with that sort of division, I have trouble taking it seriously. (Does that make me "left" or "right"?)

The only reason the JAG recruiters can't sign the statement is because they're forced to implement the laws made by the civilians who control the military.

Law schools don't have the balls to try to hold Congress accountable for the policy (which it should) so they try to focus on the JAG captain with four years of service who just wants to come on campus and get some lawyers. (Lawyers who, as TZ pointed out, may help shape the government's policy in progressive ways.)

Law schools should target Congress, and instead target the military.
Congress, to prevent this, targets Medical and Science budgets of the Universities.
It's simple tit-for-tat. The only way to resolve it is in Congress.

harvard bans ROTC totally, and I'm pretty sure that the major school in New Haven does as well (I read about New Haven students doing their ROTC at neighbouring but drastically less well known colleges and community colleges).

so it isn't just that the law school bans JAG recruitment, but that the school in general bans most military recruitment/programs. maths departments, along with physics, chemistry, engineering, and comp sci, tend to be completely off the reservation in terms of their interaction with the military and what the official policy is. if the leftists in the law school and the arts departments understood what the people in real science departments were actually doing wrt the military, they'd put a stop to it in a second, or at least try.

Sorry John but its the entire university that's at fault, not just the law school in most cases, and the entire school should be dealt with.

so it isn't just that the law school bans JAG recruitment, but that the school in general bans most military recruitment/programs. maths departments, along with physics, chemistry, engineering, and comp sci, tend to be completely off the reservation in terms of their interaction with the military and what the official policy is. if the leftists in the law school and the arts departments understood what the people in real science departments were actually doing wrt the military, they'd put a stop to it in a second, or at least try.

So then people upset over losing federal funding at their university, should lobby the university to change its ridiculous policies on which recruiters to allow on campus.

So why are the "elites" so splintered from the military? It's not just the liberal elites; most boomer-aged conservative politicians didn't serve in Vietnam, and their kids aren't in Iraq. But the elites seem to have broadly served in WWII. What happened in between?

One needs only to look at the remarkable job that the JAG has been doing with the Abu Ghraib cases to see how beneficial it can be to have well-qualified students in the military.

Would this "remarkable job" be the convictions of the grunts or the failure to bring charges against any of the officers involved? BTW, I don't dispute your point about the benefits of having a well-educated military. I just the example you chose isn't quite apt.

Todd, your post is quite elequent, and your argument is convincing. However, the argument necessitates the polar opposite conclusion. The composite of our soldiers will never look like the composite of our scholars so long as some of our best and brightest are barred from service.

If the intent of your post was not to discuss the legal issues, but rather the moral issues, the only conclusion to achieving equality is standing up to institutionalized intolerance once and for all.

With all due respect to the author of the blog and the other contributers to the VC, what possible connection does the word "elite" have to do with law schools. I can think of some other adjectives, such as wealthy, privileged, elitist, etc.
One of the major pathologies underlying politics in America is that the "left" (giggle, but what other word should I use?) truly considers itself elite, and has created a sealed self-stimulating society which cannot fathom why the "unwashed masses" do not subscribe to this self-evident truth.
In a (mostly) intellectually-honest environment such as the VC, it may be not only improper to ascribe "elite" to the bastions of liberalism, but a symptom of accepting, and fighting by, the liberals' own rules.
Perhaps, as a start, someone should define the meaning of "elite'. My own definition would include contributing to the public good, a degree of selflessness, and other (from my perspective) positive moral attributes. Perhaps the military is the "elite" of society, and another adjective should be ascribed to law schools.

If we want to heed Thucydides' warning, shouldn't we stop this pandering to ignorance that increases the cost of military service for "scholarly" types (by creating an environment repugnant to progressive intellectual values). Why further bifurcate the "warriors" and "scholars" by favoring a cartoonishly "warrior" idea whose non-empirical and bigoted stance is anti-intellectual (that homosexuals can't make good soldiers, or would ruin morale).

Further (to touch FAIR substance), the "government's money, government's rules" rationale is naive, especially for a conservative law professor. Read, e.g., Professor Darrel Levinson's work on transactional frames between the government and its citizenry. Conservatives should know that the "government's money" is a tricky concept. The government should have the same moral responsibility to treat its citizens equally whether it promulgates rules or holds money it has appropriated as hostage.

One needs only to look at the remarkable job that the JAG has been doing with the Abu Ghraib cases to see how beneficial it can be to have well-qualified students in the military.

For what it's worth, from the comments I've read from my criminal defense brethren, the JAG defense lawyers are doing a very professional job, whether defending personnel accused of abusing prisoners or defending prisoners accused of links to terrorism.

I still think the military needs to stop its bigotry against gays (the military leadership threw a temper tantrum when Clinton tried to change make them stop their bigotry, so it's fair to blame the military, not just Congress), but fair is fair.

Why does the military get to play by different rules than other employers:

Rostker v. Goldberg: it is "difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive branches."

Goldman v. Weinberger: "courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest."

The military thinks that allowing gays to serve would be a bad thing. They think allowing females to be drafted would be bad too.

This post could have been a lot shorter. The military shouldn't discrminate, particularly at a time when National Guardsmen are being called up and stop-loss policies are being enforced because we are so desperate for military personnel.

Agreed, it should have simply said "law schools should not jeopardize their students' future employment opportunities and their college's federal funding by enacting foolish policies which bar recruiters from the nation's largest employer."

Law students are "elite"? Hardly, but that the author and most of the legal profession thinks so is sadly telling and a good place to start if one wishes to know why the average citizen has naught save contempt for lawyers and judges. Compare and contrast with the average citizen's respect for those in the military.

Goober: "Where I depart is in the question why the law school, rather than the military, needs to change its policies."

The article addressed that point explicitly. It's not a military policy; it's a civilian law. I'll point out that the law was passed and signed by law school graduates.

Note also that the military is entirely under the control of the civilian federal government which creates and enforces the discriminatory policies. Barring the organization that is forced to discriminate but welcoming the people who created the discrimination is hypocrisy. When a school bans federal legislators and judges along with military recruiters, I'll believe that it's because the school protests discrimination. Otherwise, I see it as solely and intentionally anti-military.

Vietnam happened. Not necessarily the 'war' Vietnam, as much as the accompanying era of protests, heavy drug use, and really bad clothing. This appears to be the time, for a variety of reasons, when service in the military began to be viewed by a significant portion of the population as a 'bad' thing. So, if a 55 year old Congressman did not serve in Vietnam, there's a little forgiveness. When you're 18 or 20 or of general college age and the dominant popular culture at the time viewed serving in the military as something so reprehensible that soldiers should be spat upon, I can understand a little bit if that 'chickenhawk' did not volunteer for service but has since gained a more favorable view of the military. But essentially it was the Vietnam Era that began to wedge between the "elites" and the military even though many of our elite-leaders-to-be served in WW2.

MJ
Thanks and much agreement with your references there. I'm active duty and trying to switch careers into the JAG corps, which of course necessitates a break for law school. As I've been visiting campuses one of the most important questions I ask, and things I look for, is the school's role in and attitude to the Solomon case.

I think it is worth noting that many (not all, I won't generalize) of the most vociferous opponents of the law have no knowledge whatsoever of the military or how it functions, or indeed of how it is governed in this country. If they did, they'd be lobbying Congress to get DontAskDontTell changed rather than banning/restricting military recruiters from campus. A goodly number of schools (in particular the "elite" schools, to use the epithet in its most common current context) seem to exhibit some amount of military phobia (there's probably a word for that already or I'd make one up). They don't agree with military action, and this is one way to attack that, certainly one of the easier ways (what? A lawsuit is easy? Yes, for a bunch of law professors and students, much easier than trying to force Congress to act or, God forbid, enlisting and learning about the military from the inside).

Unfortunately, the FAIR folks seem to be focusing on the wrong things, which is sad. Congress could be persuaded to overturn DADT if FAIR, the LGBT lobby, and other folks simply developed and then pushed a considered and thoughtful basis for overturning it. If the military's current leadership were forced to explain WHY they think it's bad for "unit cohesion" to have gays in service, I can tell you from experience their arguments would fall apart. Many, many of my colleagues are deeply homophobic, and this extends up into the heirarchy. It is this phobia upon which many of our arguments about unit cohesion are based.

I don't much care how the case turns out or whether the law changes; it has little enough effect on my life or my career. I think the law is misguided and has more negative unintended consequences than positive intended ones, but that's just one man's opinion. What matters to me is not being an outcast in an anti-military institution because of a choice I made to serve my country that few of my fellow students would ever consider making.

"Hey" has it about right. Yale has no ROTC program, but Yale students can enroll in other schools' ROTC programs, for which they will not receive Yale scolastic credit. See, e.g., this page: http://www.yale.edu/rotc/dailylife.html which includes this:

Any student is eligible to enroll in the Army or Air Force ROTC programs offered at the University of Connecticut at Storrs. The course of study fulfills all requirements for successful completion of the ROTC program, but does not count toward the Yale degree. Most Yale students find that the ROTC academic classes and field exercises do not interfere greatly with their Yale College courses and other extracurricular activities.

On a different note: don't ask, don't tell is the correct approach for pragmatic reasons. The military must limit the number of conflict flash points. Culture differences are a significant problem for the military. Same grand arguments as why the US Postal Service can't work the same way as UPS.

"And I'm not sure to what extent concerns over the gulf between the military and the legal elite justify this differential treatment. Surely those concerns are valid. But why shouldn't we worry also about the gulf separating government offices that discriminate, nonprofits that discriminate, religious entities that discriminate, even corporate law firms that discriminate? It seems that such a concern is always present, to some degree or other. In the military context it may seem more salient. But it's hard to see how it should be of a different kind."

I'll tell you the difference, other government offices, nonprofits, religious entities, and corporate law firms, don't controll the most powerfull military in the world. If you get a millitary culture too seperate from the rest of the country you get contempt for civilian authority and potentially revolt. That is what happened to rome. It could happen to us. Keeping the military integrated into our society is critical!

But the assertion is that Yale is, as a whole, "anti-military", which is belied by the fact that they have such a program set up at all. An anti-military organization would leave participation up to students and not assist them in any way or consider the scholarships valid.

As for not qualifying for Yale College credit, that's also disingenuous. Yale gives no credit for almost any class outside Yale. As an example, AP or IB exams -- which count for credit as well as placement at most colleges and universities -- are only counted for placement here. I wouldn't expect ROTC work to count for credit at Yale even if the ROTC program were hosted on-site.

The fact is that though Yale does not have ROTC programs hosted on-campus, it gives students the opportunity to participate. I can't speak to whether or not there are ROTC booths during the extracurricular fairs each fall, having never attended such, but I also see no evidence that they don't exist.

As for why there are no ROTC programs hosted on-campus, I see no evidence that this is due to an institutional bias rather than a simple case of low demand. In the county of central MD where I attended high school, only two of ten high schools had JROTC programs, not because they were unwanted, but because that was what the demand would support. Students not allocated by geography to one of those two schools would be transferred at their request to one of them to have access to the programs. Why isn't this a plausible explanation for the situation in CT -- that few enough undergraduates at Yale are interested in ROTC to make it more efficient to simply lump them in with the existing Storrs program?

Ah, but that wouldn't support the assumption that Yale is anti-military. We must remember to argue from conclusions to hypotheses, mustn't we?

If Congress controls acces to the military for gays, then why aren't the schools excluding all federal government recruiters? If one division of IBM discriminated, would the schools exclude only that division from their campus?

It always amuses me that the academy screams about the military's discrimination against gays. The military also discriminates against women. There are many more women in these schools than there are gays. Although I must agree with the other comments that states that it is US law, duly enacted by civilians, that allows this discrimination. Ask Bob Jones University about the perils of taking government money.

Having women in the US military causes trouble with military-to-military relations in the Middle East, but try suggesting that we remove women from military roles and see how far that gets you.

Personally, I think that the DADT policy is incredibly wrongheaded and probably quantifiably bad for our national security, and I actually commend the law schools for trying to fight it. Unfortunately, "the federal government can't compel you to do this on constitutional grounds, so we'll just withhold federal funding if you don't go along" has been used successfully for decades, including in education, so I can't imagine that with roughly equivalent representation that the government loses.

And the cynic in me points out that watching their school take money to go along with positions that they don't agree with is an excellent demonstration of what is considered to be good lawyering.

I was a company commander in the Infantry. I had neither the time, nor the inclination to "witch hunt" homosexuals in the ranks. I personally don't care.

However, many service members discharged under this policy are frauds. They see an easy way out if they are willing to lie. A soldier comes into my office and states "I'm gay" or "I'm bi-sexual." By regulation, I am not allowed to fact check this at all. He is out within 2 weeks, and is universally given an honorable discharge under Chapter 15 of the UCMJ. Since most people don't know what a Chapter 15 discharge is, or the soldier in question doesn't publicize it, there is little stigma associated after they leave service.

Some will incredulously say, "No one would ever open themselves up to this!" I say that's BS -I discharged 8 in 25 months who came to me with this - remember, I didn't seek them out; they sought me out as the commander - and I honestly believe only one was actually homosexual. Two guys got picked up by their girlfriends to leave post, for chrissakes.

My battalion commander would always tell the soldier, "You can serve, but you can't tell us your orientation." None cared - they saw an easy way out.

As for why there are no ROTC programs hosted on-campus [at Yale], I see no evidence that this is due to an institutional bias rather than a simple case of low demand.

But that is not the case. Instead, the reason that there are no ROTC programs is that in 1969 the faculty voted to disallow ROTC students from receiving academic credit for their coursework in military science classes offered on the Yale campus. See, for example, the discussion here: www.yaledailynews.com/article.asp?AID=17441 That is indeed an "institutional bias."

The quote seems to be true judging by the contempt for the warrior ethos that my colleagues (especially from the Baby Boom/Vietnam War generation) in the academy frequently display. And since when have mere lawyers been elevated to the rank of scholars?

But if you're really serious about narrowing the gulf between "elite" society and the military, bring back some version of the draft, starting with my fellow academics.

The closest thing I could find in Thucydides similar to that quote comes from the Funeral Oration of Pericles (book 2, par. 40):

"Again, in our enterprises we present the singular spectacle of daring and deliberation, each carried to its highest point, and both united in the same persons, although usually decision is the fruit of ignorance, hesitation from reflection." [Crawley's translation]

"For also in this we excel others, daring to undertake as much as any and yet examining what we undertake; whereas with other men ignorance makes them dare, and consideration dastards." [Hobbes' translation]

"The nation that will insist upon drawing a broad line of demarcation between the fighting man and the thinking man is liable to find its fighting done by fools and its thinking by cowards." -- Gen. Sir William Francis Butler in his biography of Gen. Charles 'Chinese' Gordon.

So now you're proposing to cut grants to today's researchers (again, including those who have no problem with or even agree with the U.S. government's position) on the basis of what faculty thirty-six years ago said?

Besides which, the point that the article (an editorial by a Yale undergraduate -- hardly the acme of journalism) proves is that faculty believed that ROTC was more akin to vocational training than academics, and that they were not interested in vocational training.

If you enter the discussion with the conclusion already drawn that the faculty is anti-military, you can certainly ascribe that ulterior motive to the statements repeated in the article. However, if you approach with an open mind you can see other perfectly plausible explanations for the observations.

Further, you still have not shown that the motivations for not reinstating ROTC are due to an anti-military bias. The article you cite appears in the middle of the discussion on whether or not to reinstate[1]. Again, a perfectly benign motivation for the decision could be practicality -- have enough Yale undergraduates expressed interest in an ROTC program to make a change in policy worthwhile? If not, then the proposal to change can be rejected without bias having anything to do with the matter.

I say again, if you look for bias you can find sinister conspiracies behind every corner; if you consider what can be observed, you find there's no need to invoke bias at all.

[1] Actually, I'm being generous here. The writer is echoing another editorial, and the prompt was not any specific proposal working its way through the steering committee, but rather the general chaotic and confused climate post-9/11.

If Congress controls acces to the military for gays, then why aren't the schools excluding all federal government recruiters? If one division of IBM discriminated, would the schools exclude only that division from their campus?

Exactly, moreover if a school were to just try to exclude recruiters from one division of a larger organization, the school ought not to be surprised when the entire organization (rather than just the excluded division) responds by tying any future funding to allowing access for their entire organization.

A number of people have made the argument that law schools rather than universities should be punished (if anyone is going to be punished) by the withholding of federal funding.

I've got an extended argument about why that's wrong in a paper on SSRN (forthcoming in the William and Mary Bill of Rights Journal) - the basic point is that law schools in universities are nothing more than bureaucratic subdivisions of universities, without independent legal existence.

Re the argument that there is no ROTC at Yale because there is no demand.

Once upon a time, a village in England was upset with the infrequent railway service. A train stopped by only twice daily, at 6 AM and at 6 PM. The villagers petitioned for an additional train at Noon. The British Railway Board sent up a team to investigate.

Several weeks later, the report came back. The investigators decided that there was insufficient demand to warrant train service. This was demonstrated by the fact that when they sent investigators to the village train station at Noon for several days, there was nobody there waiting for a train...

Obviously, the number of Yale students interested in ROTC will have been greatly diminished by the fact that many such people would not have applied to Yale in the first place.

Regarding considering ROTC as vocational training: how does that differ from law school...or medical school... or just about anything but ancient greek mythology?

I think the cause of the lowered interest is beside the point. The point is that for one reason or another the administration doesn't believe the interest is there and could well use that to make its decisions. In fact, to just about anyone who's had to deal with Yale's administration, your comment only strengthens my position -- the railroad decision would be perfectly in character for them.

As for the nature of ROTC programs, if we were discussing whether or not the ROTC should be reinstituted on-campus that would be a good point.[1] Again, we're talking about the motivations behind the decision. They may have been wrong to compare ROTC to vocational training, but they may easily have thought they were right.

I want to repeat this to be perfectly clear. I'm not saying that Yale should or should not have an ROTC program on-campus. I'm saying that the lack thereof is easily explicable (especially considering the observed character of the bureaucracy) without invoking some sort of anti-military bias.

[1] a couple caveats here: Firstly, most academic departments (not just Ancient Greek) teach academically, not practically. You only need to remember the joke about (fictional) English department classes on useful phrases such as, "Would you like fries with that?" to see that. Even at the graduate level, there is vanishingly little instruction on how to teach a class, how to apply for grants and jobs, how to write a paper, how to get a speaking engagement, or any of the other things that make up the being of an academic rather than the doing of academic research, and precious little on how to research. Now, the professional schools may be different, or their instruction may be more practical, but here's the second caveat: the steering committee that would make this choice is specifically concerned with Yale College, not Yale University as a whole. Yale College doesn't teach law or medicine or any of the other professional disciplines to be found in the other schools on campus.